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Proposed Rule

Endangered and Threatened Wildlife and Plants; Reopening of the Comment Period on Proposed Designation of Critical Habitat for the Southwestern Willow Flycatcher

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Information about this document as published in the Federal Register.

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AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of public comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period for the proposal to designate critical habitat for the southwestern willow flycatcher (Empidonax traillii extimus) to allow all interested parties to comment on the proposed critical habitat designation under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.); the draft economic analysis; draft environmental assessment; and the associated required determinations discussed below.

Comments previously submitted on the October 12, 2004, proposed rule (69 FR 60705), and the December 13, 2004 (69 FR 72161), March 31, 2005 (70 FR Start Printed Page 3922816474), and April 28, 2005 (70 FR 21988), publications, need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule.

DATES:

We will consider all comments received from interested parties by July 18, 2005. Any comments received after the closing date may not be considered in the final determination on the proposal.

ADDRESSES:

If you wish to comment, you may submit your comments and materials by any one of several methods:

1. You may submit written comments and information by mail or hand-delivery to Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021.

2. Written comments may be sent by facsimile to (602) 242-2513.

3. You may send your comments by electronic mail (e-mail) to WIFLcomments@fws.gov.

You may obtain copies of the critical habitat proposal and supporting maps, draft economic analysis, and draft environmental assessment by mail by contacting the person listed under FOR FURTHER INFORMATION CONTACT, or by visiting our Web site at http://arizonaes.fws.gov/​SWWF_​PCH_​Oct.htm. You may review comments and materials received, and review supporting documentation used in preparation of this proposed rule by appointment, during normal business hours, at the above address.

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FOR FURTHER INFORMATION CONTACT:

Steve Spangle, Field Supervisor, Arizona Ecological Services Office (telephone 602-242-0210, facsimile 602-242-2513).

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SUPPLEMENTARY INFORMATION:

Background

We proposed to designate for the southwestern willow flycatcher approximately 376,095 acres (ac) (152,124 hectares (ha)) [including approximately 1,556 stream miles (2,508 stream kilometers)] of critical habitat, which includes various stream segments and their associated riparian areas, not exceeding the 100-year floodplain or flood-prone area, on a combination of Federal, State, tribal, and private lands in southern California, southern Nevada, southwestern Utah, south-central Colorado, Arizona, and New Mexico. The proposed rule was published in the Federal Register (69 FR 60705) on October 12, 2004, pursuant to a court order.

On September 30, 2003, in response to a complaint brought by the Center for Biological Diversity, the U.S. District Court of New Mexico instructed us to propose critical habitat by September 30, 2004, and publish a final rule by September 30, 2005. Additional background information is available in the October 12, 2004, proposal to designate critical habitat.

Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. During the comment period we anticipate receiving Tribal conservation plans and conservation plans from local government entities with authority over areas covered under the proposed designation. We note that areas covered under such plans, received during the comment period, will be considered for exclusion in the final rule pursuant to section 4(b)(2) of the Act. Additionally, as noted in our proposal, we will consider excluding, pursuant to section 4(b)(2) of the Act, (1) legally operative Habitat Conservation Plans (HCPs) that cover the species and provide assurances that the conservation measures for the species will be implemented and effective, as well as draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs), (2) National Wildlife Refuges with Comprehensive Conservation Plans (CCPs) or conservation programs that provide assurances that the conservation measures for the species will be implemented and effective, (3) water systems that provide flood control or water supply benefits, and (4) tribal lands.

Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment period upon finding that there is good cause to do so. In our proposed rule, we withheld our determination of whether this designation would be in compliance with certain Executive orders and statutes until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination. This notice serves to provide the factual basis for this determination, as outlined below. We deem this consideration as sufficient cause to reopen the comment period.

We are required by court order to complete the final designation of critical habitat for the southwestern willow flycatcher by September 30, 2005. To meet this date, all comments on or proposed revisions to the proposed rule need to be submitted to us by July 18, 2005 (see DATES).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Required Determinations—Amended

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the southwestern willow flycatcher will result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.

Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Start Printed Page 39229Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, then the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweighs the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. As noted above, in our proposed rule we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if this proposed designation of critical habitat for the southwestern willow flycatcher would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., water management and supply, livestock grazing, land development, recreation). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.

If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our economic analysis of this proposed designation we evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in four categories: Water management and supply activities, livestock grazing, land development, and recreation. The following summary of the information contained in Appendix A of the draft economic analysis provides the basis for our determination.

Water Management and Water Supply Activities

Under one scenario analyzed in the draft economic analysis, water operators are assumed to be required to change their management regimes to avoid adverse affects to southwestern willow flycatcher habitat, resulting in a loss of water for beneficial use (i.e. reservoir pools will be limited to current levels in order to avoid inundation of southwestern willow flycatcher habitat). Facilities assessed under this scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant Valley Reservoir, Isabella Dam, Hoover Dam, Parker Dam, Alamo Dam, Roosevelt Dam, and Horseshoe Dam. Under this scenario, it is expected that this economic cost will result in higher water prices to commercial and residential users; however, we find that no small businesses are directly impacted under this scenario.

Some water users may be more directly affected by changes in water supply that could occur as a result of southwestern willow flycatcher conservation activities, specifically, agricultural users dependent on the drought reserves provided by these systems. Appendix A of the draft economic analysis provides a profile of the agricultural users that are at greatest risk from direct losses in water supply under this scenario. The four water systems that provide water to agricultural users include Lake Isabella (including the North Kern Water Storage District, the Buena Vista Storage District, and the City of Bakersfield Water Resources Department); Roosevelt and Horseshoe (the Salt River Project operates six reservoirs and dams on the Salt and Verde Rivers); Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River (water from the Colorado River is diverted to six States and is used for every purpose, including agricultural uses).

Livestock Grazing Activities

Impacts to livestock grazing include an estimated reduction in the level of grazing effort within the proposed designation of 89,300 AUM (animal unit months), of which 1,300 are federally permitted, and 88,000 are on private lands. The AUM reduction could represent approximately 1 percent of AUMs for each of 105 affected ranchers holding Federal grazing permits in the proposed designation cumulatively over 20 years. On non-Federal lands, impacts on grazing efforts are more uncertain, since maps describing the overlap of privately grazed lands and the designation are not available. However, Start Printed Page 39230if each ranch affected is small, then 0 to 110 ranches cumulatively over 20 years could experience a total reduction in private lands grazing effort. We believe that this would represent approximately 0.3 percent of beef cow operations in affected States. However, we will continue to evaluate the potential economic impacts by determining the number of AUMs per region and the number of ranches per the region to determine if our assessment is accurate.

Land Development Activities

Impacts to development activities within the proposed designation include land value loss, other project modifications, California Environmental Quality Act costs, and project delay costs in the Mojave and Santa Ana Management Units in California. It was determined in the draft economic analysis that less than 1 percent of land developers will be affected, and 0.02 percent of annual revenues of small land developers in this area may be lost.

Recreation Activities

Impacts to recreation activities include limitations on vehicle use, fires, and cigarette smoking in two areas near Roosevelt Lake on the Tonto National Forest, and fewer trips to the area for hunting and fishing for a total annual impact of approximately 0.25 percent of annual small business revenues in Gila County.

Based on this data we have determined that this proposed designation would not affect a substantial number of small businesses involved in or affected by water management and supply activities, livestock grazing, land development, and recreation. Further, we have determined that this proposed designation would also not result in a significant effect to the annual sales of those small businesses impacted by this proposed designation. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities.

Executive Order 13211

On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 due to it potentially raising novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Appendix B of the draft economic analysis provides a detailed discussion and analysis of this determination. Specifically, two criteria were determined to be relevant to this analysis: (1) reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity, and (2) increases in the cost of energy production in excess of 1 percent. The draft analysis finds that no net reduction in electricity production is anticipated, and thus we do not anticipate that the suggested OMB threshold of 1 billion kilowatt hours will be exceeded. In addition, total financial impacts related to southwestern willow flycatcher conservation activities ($2.7 million annually) represent 0.02 percent of the estimated annual baseline cost of regional energy production, and this is well below the 1 percent threshold suggested by OMB. Therefore, this action is not a significant action, and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) The economic analysis discusses potential impacts of critical habitat designation for the southwestern willow flycatcher on water management activities, administrative costs, livestock grazing, residential and commercial development activities, Tribes, transportation activities, recreation activities, and fire management activities. The analysis estimates that annual costs of the rule could range from $29.2 to $39.5 million annually using the most likely costs scenario. Impacts are largely anticipated to affect water operators and Federal and State agencies, with some effects on livestock grazing operations, land development activities, and recreation activities. Impacts on small governments are not anticipated, or they are anticipated to be passed through to consumers. For example, costs to water operations would be expected to be passed on to consumers in the form of price changes. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for the southwestern willow flycatcher will Start Printed Page 39231significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

Takings

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the southwestern willow flycatcher in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the southwestern willow flycatcher does not pose significant takings implications.

Authority

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

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Dated: June 30, 2005.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

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[FR Doc. 05-13402 Filed 7-6-05; 8:45 am]

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